According to lawyer Evans Monari, "The CJ has been discussing the matter in press conferences. It is not viable that this issue should be discussed in this manner. We are registering our protest." Monari's reported statement was made at the high court this July 31 during the hearing of a case challenging the eligibility of his client, Uhuru Kenyatta, and William Ruto to vie for the presidency in the forthcoming elections; in view of the charges they currently face before the International Criminal Court.
The presiding judge Isaac Lenaola is reported to have said "neither judges nor the public should make comments on the merits of the case before it is concluded." The newspaper report noted that, "The judge's remark fell short of the order he had granted on February 2 barring any public discussion or comment on the matter. The ban was however lifted after an agreement between all the parties involved in the suit."
I strongly disagree with honourable judge Lenaola. This is fundamentally for two reasons. Before delving into these, let me at this stage make it known that I have previously, based on my reading of Article 10 and Chapter 6 of the constitution, publicly expressed the view that it is untenable for both Uhuru Kenyatta and William Ruto to vie for the presidency while they continue to face charges before the ICC.
And should a credible, independent and impartial entity also prefer charges that touch on the integrity of any other of the declared presidential candidates, I will similarly ventilate the view that they are barred under Article 10 and Chapter 6 of the constitution to run for the presidency of the Republic of Kenya. Needless to say, the same would apply if there is incontrovertible evidence showing that any candidate has been involved in abuse of office.
However, today I would like to give two reasons why I think Justice Lenaola erred at the July 31 hearing. First, he allowed legal counsel Monari to take aim and make a very general but grave accusation against Chief Justice Willy Mutunga, making it look like the CJ is biased, partisan and compromised, without requiring any substantiation. Has the Chief Justice really been "discussing the matter in press conferences? "Discussing the matter" would entail fundamentally discussing the merits of the case that is before the court.
When exactly did this happen? And what exactly did the CJ say? Details are fundamental if we are to avoid misrepresenting the Chief Justice, and hence, casting aspersions with regard to his impartiality - and hence credibility. Moreover, details are also critical in ensuring we establish the correct boundaries about what is permissible and what is not. As the truism goes, the devil is in the detail!
With no particular statement to refer to, one can only speculate that perhaps the statement creating anxiety could be this one attributed to the CJ: "Those of you who are running for office, whatever office you are running for, should know that if you are found to have been violent, or you have stolen votes, Chapter Six will ensure that you will never run for political office again...Those running for office should read that chapter very carefully; because if you are guilty it is the chapter that will make sure that you don't run for any public office in this country...That chapter talks about leadership across our society. The values are clear. Those husbands who are beating their wives must know that you cannot even be a councillor or a chief. Forget it."
Would this reported statement constitute "discussing the matter" before the High Court that seeks to challenge the eligibility of both Uhuru and Ruto? Or are some people getting unnecessarily jittery and beginning to jump at the sight of their own shadows? There is clearly no reference to the facts or arguments before the High Court and the statement is clearly a generic view about what the CJ thinks is the content of Chapter 6. It, hence, seems that that we are about to begin gagging the Chief Justice from making any and all statements about such key legal documents as the Constitution with no reference whatever to context, empirical facts and reality. This should not go unchallenged.
My second area of disagreement with the statement attributed to Justice Lenaola revolves around the place of the sub judice rule in the context of the constitutional guarantees of the freedoms of speech, expression and press. With regard to the current case in which the eligibility of Uhuru and Ruto to run for president is constitutionally challenged at the High Court, a strict application of thesub judice rule will clearly also compromise the ability of the citizen to participate in his or her own governance, which is one of the national values enshrined under the constitution.
As one legal scholar has observed, "The first thing one ought to flag down is that the sub judice rule, being of common law origin, applies almost exclusively, or at least most of the time, to criminal proceedings whose ultimate fact finders and decision makers rest with a jury composed of laymen." In short, the idea is to protect the court from outside views that would "inflame" its decision.
This is most unlikely to happen in this case and as was the view taken by the Media Council of Kenya when it protested Justice Lenaola's February gag order: "While the sub-judice law falls within the realm of common law, it now must be weighed against the protection provided to the media in the bill of rights, which, in our view, is superior....in enforcing the sub judice rule, it is our view that courts should weigh its impact on the wider interest of the Kenyan nation...With the reforms going on in the judiciary, the calibre of judges we are recruiting surely can make up their legal minds without being swayed by discussions taking place in the public arena and in organs of mass communication."
Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa. The views expressed in this article are entirely his own and do not reflect the views of OSIEA.